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TMI Blog2013 (6) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... e counter affidavit which is on record may be read as counter affidavit to the amended writ petition. 3. We have heard counsel for the parties and proceed to dispose of these writ petitions. 4. As common issues arise for consideration in two writ petitions, we are disposing them by this common judgement. The writ petitions challenge the preventive detention orders in the case of Rohit Sakhuja and Ajit Singh Chadha @ Romy. 5. Rohit Sakhuja and Ajit Singh Chadha have been subjected to detention vide order dated 04.01.2013 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the COFEPOSA Act'). They were served with the detention order on 07.01.2013 in Tihar Jail, while in judicial custody in criminal case/cases. Thereafter, they made representations which were forwarded to the Central Government. Representation was also made to the Advisory Board. The Central Government vide order dated 26.03.2013 has informed the detenues that in exercise of the powers under Section 8(f) of the COFEPOSA Act, the Central Government has confirmed the detention order. The Central Government has further directed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discrepancies in the stock of air conditions were detected and goods mentioned in the supardarinama were found to be missing. Rohit Sakhuja and Ajit Singh Chadha it is alleged have failed to provide any plausible reason/explanation for the discrepancy as detailed in the panchnama dated 19.09.2012. The last FIR i.e. FIR No.266/2012 dated 16.11.2012 has been registered in police station Ranhola, Nangloi, on complaint by DRI officers. It is alleged that seal and locks of Godown at 76, Meera Enclave, Village Ranhola, Nangloi was found broken and the seized goods mentioned in the panchnama dated 07.06.2012 were removed and loaded on a truck which was intercepted with the help of local police. The goods were subsequently shifted to CWC warehouse, Sahibabad under panchnama dated 19.11.2012. 8. Rohit Sakhuja was/is arrested and in judicial custody in FIR No.254/2012 PS Pul Prahladpur and he has not been released on bail. Ajit Singh Chadha has been arrested and is in the judicial custody in FIR No.254/2012 PS Pul Prahladpur, FIR No.225/2012 PS Nihal Vihar and FIR No.143/2012 PS Deshbandhu Gupta Marg. 9. In paragraph 47 of the grounds of detention in the case of Ajit Singh Chadha, the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in jail was futile and useless exercise. Considering the said contentions, the Supreme Court opined:- "7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised....." (emphasis supplied) 13. From a reading of the said paragraph it is clear that if a detenu is in police or judicial custody and there is no imminent possibility of his release, the rule is that the power of preventive detention should not be exercised. However, when there is imminent possibility that the person in custody may be released, power of preventive detention can be exercised. 14. Recently, the Supreme Court in Rekha v. State of Tamil Nadu Through Secretary to Government and Anr., (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the Petitioner, then the Petitioner is ordinarily granted bail. However, the Respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the ground of detention cannot sustain the detention order and has to be ignored. 11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained." 17. We would also like to reproduce paragraphs 26 and 27 of the said judgement which are as under:- "26. It was held in Union of India v. Paul Manickam and Anr., (2003) 8 SCC 342 , that if the detaining authority is aware of the fact that the detenu is in custody and the detaining authority is reasonably satisfied with cogent material that there is likelihood of his release and in view of his antecedent activit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her activities in future which are prejudicial to the maintenance of public order under the provisions of Tamil Nadu Act 14 of 1982."" 19. In this background, the Supreme Court was posed with the question that whether the said grounds meet and satisfy the requirements of law or these were not sufficient to justify the detention order which therefore, for non compliance of the law, stands vitiated. The Supreme Court in para 7 of the said judgment quashing the detention order observed:- "7. A perusal of the above statement in Para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the coaccused on the same case, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opinion, in the absence of details this statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y possibility of the detenu being granted bail in the criminal cases in which they were detained while passing the detention orders. The learned counsel for the respondents has highlighted the allegations against Ajit Singh Chadha and Rohit Sakhuja which it is pointed out are grave and very serious. This may be true and correct but this does justify non-compliance with the mandate and requirements of law. As observed in Rekha (supra), when an order under preventive detention law is under challenge before a court, there are limited grounds or reasons on which it can be invalidated or struck down. The procedural requirements are only safeguards available to the detenu since the court is not expected to go into the subjective satisfaction of the detaining authority. Procedural requirements, as per judicial pronouncements, have to be strictly complied with. Preventive Detention is permissible under Article 22(3)(b) of the Constitution of India but the same has to ordered/directed keeping in view that right to life and liberty are enshrined in Article 21 of the Constitution of India. Preventive detention is an extreme step which is required and may be justified, but when a detention ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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